Sauls v. Whitman

• Decision Date: 12 March 1935
• Docket Number: Case Number: 24398
• Citation: 42 P.2d 275,1935 OK 247,171 Okla. 113
• Parties: SAULS et al. v. WHITMAN, Adm'r.
• Court: Oklahoma Supreme Court

1935 OK 247

42 P.2d 275

171 Okla. 113

SAULS et al. v. WHITMAN, Adm'r.

Case Number: 24398

Supreme Court of Oklahoma

Decided: March 12, 1935

Syllabus

¶0 1. GIFTS--Delivery of Money to Donor's Agents With Instructions to Deliver Same to Donee in Case of Donor's Death Held Ineffective as Gift.

Where donor delivers money to persons who, under the evidence, are merely her agents, and instructs them to deliver the money to the donee in case of her death, said death terminates the agency and the money is a part of decedent's effects.

2. SAME--Delivery as Essential Element of Gifts.

Delivery is an element which is common to both gifts inter vivos and gifts causa mortis, and unless delivery is accomplished the attempted conveyance does not constitute either a gift inter vivos or a gift causa mortis.

3. SAME--Transaction not Upheld as Trust Merely Because Invalid as Gift.

If delivery of the subject of gift is made to one who can be called only the donor's agent, and who is in no wise trustee or agent for the donee, and the donor dies prior to the delivery of the gift to the donee, the transaction will not thereby be upheld as a trust, merely because it is invalid as a gift.

4. EXECUTORS AND ADMINISTRATORS--Right of Action for Double Damages Against Person Alienating Effects of Decedent Regardless of Bad Faith on Part of Defendant.

Recovery under section 1219, O. S. 1931, prescribing recovery by the administrator, of double damages against persons alienating the effects of a decedent, does not require that the defendant, in so alienating the effects, must have acted in bad faith.

Appeal from Superior Court, Pottawatomie County; Leroy G. Cooper, Judge.

Action by F.E. Whitman, administrator of the estate of Mary A. Jent, deceased, against A.J. Sauls and A.L. Tucker, to recover double damages for acts of defendants as executors de son tort, under section 1219, O. S. 1931. From judgment for plaintiff, defendants appeal, Affirmed.

A.J. Carlton, for plaintiffs in error.

Park Wyatt, Byron Lamun, and Chas. E. Dierker, for defendant in error.

PHELPS, J.

¶1 This is an action by the administrator of the estate of Mary A. Jent against A.J. Sauls and A.L. Tucker to recover double the amount of money which the administrator alleges was the property of Mrs. Jent, which the defendants alienated after her death and prior to the appointment of said administrator. The parties will be referred to as they appeared in the trial court. The trial court found that the defendants alienated $1,140 belonging to the decedent and rendered judgment against each of the defendants in double that amount, $2,280, and interest thereon at 6 per cent, from September 18, 1930, the date of the alleged alienation, from which the defendants appeal.

¶2 The action was brought under the provisions of section 1219, O. S. 1931 (1220, C. O. S. 1921), which reads:

"If any person before the granting of letters testamentary or of administration, embezzles or alienates any of the moneys, goods, chattels or effects of a decedent, he is chargeable therewith, and liable to an action by the executor or administrator of the estate, for double the value of the property so embezzled or alienated, to be recovered for the benefit of the estate."

¶3 Mary A. Jent was an elderly widow who owned a farm near McLoud, Okla. She had $1,650.20 cash in the Bank of Commerce of McLoud, and received a pension check of $40 per month. Apparently she had no immediate living family, and for several years prior to her death spent most of her time with the families of the defendants, paying them $25 per month for room and board. It was her habit to sign checks in blank, omitting therefrom the names of the payees and the amounts, and turn said checks over to either or both of the defendants, who would then go to the bank and fill in the checks, drawing out money for her and attending to her business affairs.

¶4 No conflict appears the evidence. On August 5, 1930, Mrs. Jent was and had been living in the home of one of the defendants, and paying him for her board and lodging; she was sick and preparing to go to a hospital in Oklahoma City. On that date, she told the defendants, as she had done many times before, that in case she should die she did not want any of her kin to have any of her money, but that she wanted defendants to take it, pay her indebtedness, including funeral expenses and a tombstone, and to pay themselves for their trouble, and then to remit the balance to the Watch Tower Bible and Tract Society, of Brooklyn, N.Y. She made no will. On August 6, 1930, being ready to go to the hospital, she said to the defendants: "I may have to be operated on and might not get back alive. I want you to 'tend to my business. * * * When I die I want you two men to send what I have to the Bible Society." Referring to the money in the bank, she said: "You draw this money out, I don't want you to leave it in there, I can't rest with it in there. You draw it out and do what I have requested you for the last six or seven years, and if something happens to me, if I was to die, you pay all my expenses * * * and take out for your trouble, and the remainder of what is left after everything is paid off, why then you send the rest to the Watch Tower Bible and Tract Society. * * * When I die I want you two men to send what I have to the Bible Society."

¶5 With these instructions she signed her name to two blank checks, and gave each of the defendants one of them and went to the hospital in Oklahoma City, where she stayed until August 14, 1930, when she was returned to the home of defendant Sauls, at which place she died on September 15, 1930. On the date she went to the hospital, or the day following, the defendants went to the bank with the two blank checks and there withdrew all of her money, having the amount of each check filled in for $825.15, thus making a total of $1,650.30 belonging to her which defendants withdrew. At the bank the cashier attempted to persuade them to take the money in the form of a draft instead of in cash, but they refused to do this, saying that Mrs. Jent had instructed them to bring the cash. Although they each had checking accounts in the bank, they did not deposit this money therein, but took the cash home with them, where they kept it until after she died. This made a 40-day period in which the defendants held her money, to be dispensed with according to her instructions, in case of her death. Immediately after her death they went about paying various bills of the decedent, including a payment of $195 to the wife of one of the defendants as compensation for nursing the decedent while she had been sick in bed at the defendant's home.

¶6 Some mention was made in the record concerning the monthly pension checks of $40 each from April to September, totaling $240. They were not deposited in the bank by the decedent or the defendants for her, and they seem to be unaccounted for except as to the September check, which the defendant Sauls testified decedent used, according to his description, in this manner: "When she got that one she told me to go cash it, and I cashed it, and she turned it to me, she said, 'Mr. Sauls, use this money for incidental expenses, or whatever you want to'." Defendant Sauls was then asked at the trial if he had used it for incidental expenses, to which he replied, "I sure did, I used it." At this time each defendant had $825.15 cash belonging to her in his possession, totaling $1,650.30 between them. In addition to the $195 received by this defendant's wife and the $40 which he spent for incidentals, it developed at the trial that this defendant sold 270 bales of hay for the decedent, amounting, according to his testimony, to the sum of $85, but that, "I took the hay and put that in on her bill for what I had done for her and the help I had given her. I just kept that for what I had supported her." Witness was asked in what way he had helped her, and he said, "I helped day and night, helped turn her in the bed, got her medicine, helped at night lots, me and my wife both, and that was the only charge I made for it was that hay." She was confined to her bed for a period of approximately 30 days, including the ten days in the hospital. Whether the flavor of these acts lingered over and seasoned the post mortem activities of the defendants with either good or bad faith is not shown in the journal entry of judgment, as a conclusion of the trial court.

¶7 On September 19, 1930, four days after the death of Mrs. Jent, the two defendants appeared at the bank with the cash remaining in their possession and bought a casher's check, payable to The Watch Tower Bible and Tract Society of Brooklyn N.Y., in the sum of $1,140, which they forwarded to that organization. It was paid by the bank on September 30, 1930.

¶8 The trial court rendered judgment against each of the defendants in double that amount, equaling $2,280, apparently allowing them credit for the debts of the decedent paid by them out of her money before they forwarded the balance to the society. The parties do not question the correctness of the trial court in allowing this credit.

¶9 For reversal of this judgment the defendants urge that, "If the effect of what Mrs. Jent and the defendants did was to divest Mrs. Jent of this property during her lifetime and to vest same in the Bible Society, then in that event the plaintiff must fail and the judgment of the trial court must be reversed." That being an approximately correct statement of the law, at least to the extent of the necessity that she divest herself of title during her lifetime, the determination of the legal identity of the transaction effectuated is next in order. In other words, by their declarations and conduct, just what form of conveyance, if any, and just what relationship of the parties to each other and to the property, did the parties create? The answer to that question will solve the ultimate issue in the case, namely: After Mrs. Jent's...